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Davis v. State

Under the rule of lenity, the defendant could not receive the greater sentence imposed for aggravated sexual battery by the version of O.C.G.A. § 16-6-22.2 subsection c applicable after July 1, 2006, as the general verdict form did not show whether the jury found the defendant guilty based on an act committed before or after that date.

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On appeal from his conviction for aggravated sexual battery and child molestation, Albert Davis argues that the trial court erred when it failed to charge the jury on accident, when it closed the courtroom during the victim’s testimony, and when it received an ex parte communication from a juror. Davis also argues that the statute of limitation had run before he was indicted for aggravated sexual battery, that he was deprived of his right to effective and conflict-free counsel, and that his sentence on the aggravated sexual battery count was illegal. We affirm Davis’s conviction but vacate his sentence and remand for resentencing because the rule of lenity requires that he be resentenced under the lesser penalty prescribed by the version of OCGA § 16-6-22.2 in effect before July 1, 2006.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Citation omitted. Reese v. State, 270 Ga. App. 522, 523 607 SE2d 165 2004. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 III B 99 SCt 2781, 61 LE2d 560 1979.

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